DA 10-0101

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 216

CHARLES LOKEY, and VANESSA LOKEY,

Plaintiffs and Appellants,

v.

ANDREW J. BREUNER, and A.M. WELLES, INC.,

Defendants and Appellees.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DV-08-57B

Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Martin R. Studer; Studer Law Offices, Bozeman, Montana

For Appellees:

Allan H. Baris; Moore, O’Connell & Refling, P.C., Bozeman, Montana

Guy W. Rogers; Brown Law Firm, Billings, Montana

Submitted on Briefs: September 22, 2010

Decided: October 20, 2010

Filed:

__________________________________________

Clerk

October 20 2010
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Charles Lokey and Vanessa Lokey appeal the District Court’s order dismissing the 

complaint as to A.M. Welles. The District Court certified that the order was final for 

purposes of appeal under M. R. Civ. P. 54(b). We reverse and remand.

¶2 Lokeys present the following issues for review:

¶3 Issue One: Whether the District Court erred in dismissing the complaint as to

A.M. Welles.

¶4 Issue Two: Whether the District Court’s assertion that Charles Lokey violated §

61-8-324, MCA, was improper.

BACKGROUND

¶5 This action arises out of a September, 2006 collision between a bicycle ridden by

Charles Lokey and a vehicle driven by Andrew Breuner. Lokey was riding his bicycle in

heavy traffic on South 19

th Avenue in Bozeman. An A.M. Welles dump truck loaded

with gravel and pulling a trailer overtook Lokey and was slowly pulling around him. The

Welles truck proceeded parallel to Lokey while Lokey moved over to the edge of the

roadway to accommodate the truck.

¶6 Andrew Breuner was traveling in the opposite direction and had stopped to make a

left turn into a driveway. The driver of the Welles truck saw Breuner stopped and saw

that there was a long line of vehicles backed up behind him. He also saw that some other

drivers were passing Breuner on the right. The driver of the Welles truck stopped in the

road and gestured for Breuner to make the left turn. Breuner began the turn and collided
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with Lokey and his bicycle. The Welles driver “forgot” that he was passing Lokey, who

continued moving after the truck stopped, colliding with Breuner’s vehicle. Lokey was

injured in the accident, and his wife Vanessa Lokey claims loss of consortium and

emotional distress.

¶7 Welles filed a motion to dismiss the complaint for failure to state a claim. The

District Court granted the motion, concluding that the Welles driver was “no more

responsible for Lokey than he was for any of the hundreds of other drivers on the road.”

The District Court further concluded that there is “no authority for Lokey’s proposition

that a driver who courteously yields his right-of-way to a left-turning driver is responsible

for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever

may be there.”

STANDARD OF REVIEW

¶8 A district court’s decision on a motion to dismiss is treated as a conclusion of law

that this Court reviews to determine whether it is correct. Public Lands Access Assoc. v.

Jones, 2008 MT 12, ¶ 9, 341 Mont. 111, 176 P.3d 1005.

DISCUSSION

¶9 Issue One: Whether the District Court erred in dismissing the complaint as to

A.M. Welles. The briefs on appeal cast this issue as one of first impression in Montana:

whether a person who undertakes to direct traffic, such as by gesturing for an on-coming

driver to turn in front of him, has a duty to exercise reasonable care in doing so. Even if

the facts are novel, resolution of the issue is based upon settled law.
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¶10 This Court has recognized and adopted the “long-standing principle of tort law

that ‘one who assumes to act, even though gratuitously, may thereby become subject to

the duty of acting carefully, if he acts at all.’” Nelson v. Driscoll, 1999 MT 193, ¶ 37,

295 Mont. 363, 983 P.2d 972 (citing the Restatement (Second) of Torts, § 323, see also §

324). In Nelson a police officer prevented a possibly impaired person from driving, and

that person was later struck and killed by another driver while trying to walk home. This

Court held that even though the officer may not initially have had a duty to protect the

impaired person from harm, the officer assumed a duty to ensure the person’s safety by

controlling the situation and preventing the person from driving. Nelson, ¶ 38. Other

cases support the established rule of law that one who acts gratuitously must then act with

due care. Jackson v. State, 1998 MT 46, ¶ 49, 287 Mont. 473, 956 P.2d 35 (adoption

agency that volunteers information about the background of the child has a duty to

exercise due care in doing so); Kopischke v. First Continental Corp., 187 Mont. 471,

481-82, 610 P.2d 668, 673-74 (1980) (car dealer who undertakes to repair and

recondition a used car for resale assumes a duty to exercise reasonable care).

¶11 Other jurisdictions have adopted this rule as to “waving drivers” who gesture for

another driver to turn in front of them:

It is relatively easy for waving drivers to check if passage is safe, and if

unable to do so, a driver contemplating a gesture should not take on the

responsibility of directing traffic. Because gestures are so common and the 

risk of injury from car accidents so severe, it is only fair to impose a duty 

upon waving drivers.

Thorne v. Miller, 317 N.J. Super. 554, 560, 722 A.2d 626, 629 (1998). Prosser, in

discussing the principle that a duty to act reasonably may arise from a gratuitous act,
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gives as an example a driver who gestures for a following driver to pass and who “will be 

liable if he fails to exercise proper care and injury results.” Prosser, Law of Torts (4th

ed.), § 56. 

¶12 The existence of a duty in a particular situation depends upon whether injury to

another was reasonably foreseeable and upon a weighing of policy considerations for and

against imposition of liability. Hinkle v. Shepherd School District, 2004 MT 175, ¶ 25,

322 Mont. 80, 93 P.3d 1239. Foreseeability depends upon whether the injured party was

within the scope of risk created by the alleged negligence; whether the defendant could

have foreseen that the conduct could have resulted in injury to the plaintiff. Hinkle, ¶ 30.

Policy considerations include prevention of future harm, the burden placed upon the

defendant, the consequences to the public of imposing a duty and the availability of

insurance for the risk involved. Hinkle, ¶ 25.

¶13 Here, it was foreseeable that the Welles driver’s conduct could endanger persons

behind the gravel truck, including Lokey. Lokey had moved his bicycle to the fog line on

the road and the Welles driver chose to go around him or start to do so. The Welles

driver then decided to take it upon himself to address the traffic issue caused by

Breuner’s desire to turn left. The Welles driver saw the backed-up vehicles and the

decision of some other drivers to pass Breuner on the right rather than to wait for Breuner

to make his turn. The Welles driver knew that Lokey was present on the edge of the

roadway and, according to Lokey, the Welles driver had been driving the truck alongside

Lokey for some time. The Welles driver just “forgot” about Lokey when he gestured for

Breuner to make the turn. The Welles driver could also have considered whether
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Breuner’s view was impeded by the size of the truck. It was foreseeable under these

circumstances that Lokey, or even a driver following the Welles truck who might have

decided to pass the stopped truck on the right (like the Welles driver observed in the

opposite lane) might come around the Welles truck and be struck by Breuner. As the

New Jersey court said in Throne, the responsible decision in such a situation may be to

not take on the responsibility for directing traffic.

¶14 Placing a duty on the waving driver to either exercise due care before directing

another driver or decide that it is not safe to do so, could prevent future harm in similar

circumstances. There is little burden placed upon the waving driver—he could decide

under the circumstances to not stop in the road and motion another to turn and could

refrain from gesturing another driver to turn if the safety of the turn were questionable.

The consequences to the public of imposing a duty are minimally burdensome and there

is a potential increase in safety. Lokey asserts that Welles had insurance to cover the

occurrence.

¶15 This case is not, however, about discouraging or condemning courtesy among

drivers. To the contrary, driving, especially on crowded roads, can be a high risk

endeavor that depends upon responsibility, interdependence and cooperation among all

drivers. The blame is not upon courteous behavior, but upon directing the movement of

other drivers without first exercising due care.

¶16 The Welles driver acted gratuitously by stopping on the road in the lane of travel

and directing Breuner to turn left in front of him. By doing so, the Welles driver assumed
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the duty of acting with reasonable care. The District Court’s decision to the contrary was

error.

¶17 It is for the jury to decide whether the Welles driver breached the duty and if so

whether that was a cause of injury to Lokey.

¶18 Issue Two: Whether the District Court’s assertion that Charles Lokey violated § 

61-8-324, MCA, was improper. Lokeys contend that the District Court’s statement in the 

order that Charles Lokey met “none of the conditions” that would have allowed him to 

pass the Welles truck on the right under § 61-8-324, MCA, invades the province of the 

jury and is clearly erroneous. They request that we “set aside the District Court’s 

assertion.” On appeal Welles states that Lokey’s compliance with that statute is 

“immaterial to the outcome of this appeal” and that the District Court’s statement was 

arguably dicta.

¶19 As Lokeys point out, even though the District Court’s order below granted Welles’

motion to dismiss, the parties offered and the District Court considered materials in

addition to the allegations of the complaint. Among those materials was the deposition of

Charles Lokey, in which he describes riding his bike along the road that day. According

to Lokey’s testimony, it was not he who passed the truck on the right, but the truck who

was attempting to pass him on the left and which drove alongside him for “an

uncomfortable amount of time.” According to Lokey, the Welles truck started to pull

around him slowly and never completed passing him at the time of the accident. It is far

from clear that there is any reason to apply the passing-on-the-right statute to Lokey

under those circumstances.
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¶20 Since this case is being reversed and remanded for further proceedings, the parties

will be able to present their evidence to the jury, and the significance and legal effect of

the conduct of each of the participants in the accident can be determined at trial.

¶21 Reversed and remanded for further proceedings consistent with this opinion.

/S/ MIKE McGRATH

We concur:

/S/ JAMES C. NELSON

/S/ MICHAEL E WHEAT

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS